Case A25

Judges: AM Donovan Ch
JD Davies M

GR Thompson M

Court:
No. 2 Board of Review

Judgment date: 18 April 1969.

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G. R. Thompson (Member): In
17 T.B.R.D. Case S50 (291), I set out at some length my understanding of the meaning and effect of the expression ``any property being plant or articles owned by the taxpayer and used by him... for the purpose of producing assessable income'', and to those remarks, which related to an industrial project, I need add little for the purpose of this reference.

2. The property under consideration in this case is to be found in and about a commercial office building, and, of course, many of my comments in Case S50 do not apply to such an undertaking. However, an industrial building and an office block have this in common, that part of the capital employed in both an industrial and a commercial enterprise may be represented by the setting within which the enterprise operates as distinct from the means by which it achieves its aims. On my understanding of the expression used in sec. 54, it does not include property in the former category, although it may include that in the latter. I extract this conclusion from the reasoning in
J. Lyons & Co. Ltd. v. The Attorney General (1944) 1 A.E.R. 477 .

3. Since writing my reasons in 17 T.B.R.D. Case S25 and Case S50 supra, the decision of Kitto J. in Broken Hill Pty. Co. Ltd. v. F.C. of T. (1968) 41 A.L.J.R. 377, has been handed down. I have considered that case carefully and do not find anything therein inconsistent with my earlier reasons.

4. Having considered the oral and documentary evidence, inspected the subject property and pondered the argument ably expounded both by counsel for the taxpayer and the representative of the Commissioner, I am left with the conclusion that the property in question should properly be regarded as part of the setting of the taxpayer's undertaking rather than the type of property contemplated for depreciation under sec. 54 of the Income Tax and Social Services Contribution Assessment Act.

5. I therefore join my colleagues in upholding the Commissioner's decision and confirming his assessment.

Claim disallowed